A quietly significant decision on sex offender monitoring

The U.S. Supreme Court occasionally grants certiorari in a case and simultaneously issues an opinion deciding it, without even allowing briefing and oral argument. Such opinions tend to resolve easy questions, and naturally, they typically receive little news coverage and lawyer attention.

On March 30, the court unanimously decided just such a Fourth Amendment case, and it attracted relatively little publicity. But the five-page opinion may spawn further litigation that will command great public attention, including in California.

Grady v. North Carolina, 14-593, reversed the Supreme Court of North Carolina and held that the state engages in a Fourth Amendment "search" when it attaches a device allowing satellite monitoring to the body of a recidivist sex offender.

The felon, Torrey Dale Grady, had been convicted of two sexual offenses, the latest involving a child. In its version of what is popularly known as Jessica's Law, North Carolina has enacted a "satellite-based monitoring program" for recidivist sex offenders, whereby the felon wears a device that allows for the continuous tracking of his location.

Grady argued at his sentencing that requiring him to wear such a device would violate his Fourth Amendment right to be free of unreasonable searches and seizures. Rejecting that contention, the trial judge ordered Grady into the satellite monitoring program for life. The North Carolina Supreme Court affirmed this ruling.

The U.S. Supreme Court's reversal was based on a simple application of two recent cases. First, in United States v. Jones, 132 S. Ct. 945 (2012), the court held that police officers engaged in a Fourth Amendment search when they installed a GPS tracking system on a suspect's car. Secondly, in Florida v. Jardines, 133 S. Ct. 1409 (2013), the court held that a search occurred when officers brought a drug-sniffing dog to investigate a suspect's front porch.

In both Jones and Jardines, the court reasoned that the physical intrusion onto the suspect's property to obtain information constituted a search. Given these decisions, the court needed little analysis in Grady to hold that "it follows that a State also conducts a search when it attaches a device to a person's body, without consent, for the purposes of tracking that individual's movements." Because the satellite monitoring program was "plainly designed to obtain information ... by physically intruding on a subject's body, it effects a Fourth Amendment search."

The court's holding, then, appears as merely an obvious application of precedent: Just as it is a search when the state puts a GPS device on a car, it also is a search when the state puts a similar device on a person.

But what happens next in Grady? Here is where the law may become of tremendous interest to lawyers and the public.

Under the Fourth Amendment, the government may engage in a search so long as it is reasonable. In cases like Jones and Jardines, the impact of the holding that a "search" occurred was simply to require officers to seek warrant in similar cases, as a judicially issued warrant renders such searches reasonable.

After Jones, if officers wish to place a GPS device on a car, they must first convince a judge to issue a warrant on the ground that they have probable cause to believe that the installation will uncover evidence of a crime. Likewise, following Jardines, if the police wish to have a dog sniff the perimeter of a home, they need a warrant.

These warrant requirements are meaningful ways to ensure that a search is reasonable, as they disallow searches where the officers lack probable cause. Yet, like other search warrants, they are simply determinations a judge makes based on the facts of a case. As to the development of the law, the high-stakes came in the decisions in Jones and Jardines holding that the police need a warrant in the first place.

In Grady, the situation differs. The court remanded for a determination in North Carolina as to whether the search imposed at sentencing is reasonable. But this inquiry promises to be far different than the case-specific determination of whether a warrant should issue, as it is not about whether there is probable cause that monitoring Grady will uncover evidence of a crime. No such probable cause exists, as the hope actually is that the monitoring will deter or prevent a future crime.

In Grady, whether the Fourth Amendment search is reasonable instead may depend on whether the monitoring program itself is, as a constitutional matter, reasonable. For this reason, the follow-up cases to Grady could well have more direct impact on the public than Grady itself.

On remand in Grady, the most significant U.S. Supreme Court case most likely would be Samson v. California, 547 U.S. 843 (2006), in which the court upheld California's requirement that parolees waive their Fourth Amendment rights and permit their homes and persons to be searched at any time without any suspicion.

Samson balanced the intrusion of California's law on individual privacy against the state interests supporting the suspicion-less searches of parolees. The court reasoned that parolees, like prisoners, had diminished Fourth Amendment protections. The court analyzed the specifics of California's statutes governing the searches, and reviewed some empirical evidence supporting the value of such searches. Given the parolees' status, the court held, it was reasonable for California to require them to waive their Fourth Amendment rights as a condition of parole.

To an extent, Samson surely will be wielded by prosecutors in Grady's remand. If it is reasonable for a state to protect the public by requiring parolees to waive their rights to have their homes searched, is it not reasonable for a state to require recidivist sex offenders to have their bodies "searched" by wearing an ankle bracelet?

But the defense may have arguments as well that the program is unreasonable. For one, the monitoring in Grady will occur continuously for the rest of Grady's life; it is not occasional search of a home that officers may never actually perform.

Perhaps most importantly, the monitoring in Grady - or similar monitoring in other states - perhaps may be ordered while the defendant is not on parole, no longer on parole, or not even on any sort of probation. In such a case, the subject arguably may not have the sort of diminished Fourth Amendment rights that were critical in Samson.

The stakes on this issue likely will not be limited to North Carolina. Since Florida enacted the first "Jessica's Law" in 2005, a total of at least 39 states have enacted either GPS or electronic monitoring of sex offenders, according to a November 2013 analysis by the National Conference of State Legislatures.

These programs vary in their details. In California, sections 3004 and 3010 of the Penal Code require lifetime electronic monitoring of many felony sex offenders. Some studies have confirmed the effectiveness of California's program in reducing recidivism. But now that it has been determined that monitoring involves a Fourth Amendment search, those subject to monitoring in California and other states may bring Grady challenges to the reasonableness their monitoring, which may implicate the details of each state's program.

In such a challenge, the strength of the empirical evidence supporting the program may matter, and it may perhaps matter, for instance, what particular crimes are subject to monitoring, whether monitoring is authorized for only recidivists, and the length of time that the monitoring must occur without review. Given such factors, the extent to which the monitoring programs will face actual constitutional restrictions seems unclear.

Grady was easy enough to be decided without briefing and abstract enough to garner little attention. But to the extent that Jessica's Law monitoring programs nationwide turn out to be constitutionally vulnerable, Grady's progeny may not be so obscure.

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